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Criminal - Appeals - Bail Pending (5). R. v. Gordon [after retrial ordered]
In R. v. Gordon (Ont CA, 2025) the Ontario Court of Appeal considered bail after a retrial had been ordered [under CCC 679(7.1)], but before the defendant had appeared before the trial court:[2] This court’s jurisdiction to determine bail release pending a retrial is provided for in s. 679(7.1) of the Criminal Code: R. v. Ranger (2003), 2003 CanLII 15438 (ON CA), 180 O.A.C. 138 (C.A.), at para. 10. That jurisdiction is exclusive between the time the appeal court makes an order for a new trial and the first appearance in the trial proceedings: Ranger, at para. 10. When it acts, this court is empowered to make bail release orders pending trial: Criminal Code, s. 679(7.1); Ranger, at para. 17. Once the accused appears before the trial court, the trial court has concurrent jurisdiction: R. v. Manasseri, 2017 ONCA 226, at paras. 40-41. Where concurrent jurisdiction exists, this court typically declines jurisdiction in favour of the trial court, which will ordinarily be in a better position to determine bail release: Manasseri, at para. 42. There are a range of reasons for this, including: the superior facility of trial courts to accommodate oral evidence; their scheduling advantages; the review mechanisms available when the order is made at the trial level; the nature of the record; and the potential convenience arising from the geographical proximity of the trial court: Manasseri, at para. 43; R. v. Vincent, 2008 ONCA 76, at paras. 16-17. Therefore, as Brown J.A. suggested, “special circumstances” are required before this court will exercise its jurisdiction where a bail hearing is contested: R. v. D.C., 2019 ONCA 553, at paras. 15-16. . R. v. Francois [bail pending leave to appeal sentence only]
In R. v. Francois (Ont CA, 2025) the Ontario Court of Appeal considered bail pending leave to appeal sentence [under CCC 679(4)]:(ii) Bail Pending Sentence Appeal
[9] A judge may order that an applicant be released pending the determination of the sentence appeal or until otherwise ordered by a judge of the Court of Appeal if the applicant establishes the three elements set out in s. 679(4) of the Criminal Code:(a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if the applicant were detained in custody;
(b) the applicant will surrender into custody in accordance with the terms of the order; and
(c) the applicant’s detention is not necessary in the public interest. [10] Under s. 679(4)(a), the applicant must show that the appeal has sufficient merit such that, in the circumstances, it would cause unnecessary hardship if the applicant were detained in custody. This standard is more stringent than the test for leave to appeal sentence: R. v. Hassan, 2017 ONCA 1008, at para. 19, citing Justice Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010) at p. 10-38. The merits inquiry under s. 679(4)(a) focuses on whether “it is more probable than not that a successful sentence appeal would result in a significantly lower sentence”: R. v. Hewitt, 2018 ONCA 293, at para. 18 (“Hewitt II”).
[11] The link between sufficient merit and unnecessary hardship in s. 679(4)(a) is inextricable. The applicant must demonstrate that the appeal is sufficiently meritorious such that, if not released from custody, the applicant will have already served the sentence as imposed, or what would have been a fit sentence, prior to the hearing of the appeal: Hewitt II, at para. 10; D.W., at para. 6; R. v. Weir, 2022 ONCA 674, at para. 10. This threshold requirement works to prevent the applicant from serving more time in custody than what is later determined to be appropriate: see Trotter, at pp. 10-39 to 10-40.
[12] An applicant, however, cannot obtain bail pending sentence appeal simply by pointing to possible hardship – s. 679(4)(a) requires an applicant to establish “unnecessary” hardship: R. v. McIntyre, 2018 ONCA 210, at para. 34. Whether potential hardship suffered by the applicant is “unnecessary” must be determined with reference to the merits of the pending appeal: McIntyre, at para. 34. There is no unnecessary hardship in serving an appropriate sentence: McIntyre, at para. 34, citing R. v. Johnston, 2014 NSCA 78, 349 N.S.R. (2d) 122, at para. 21. The weaker the merits of a pending appeal, the harder it will be for an applicant to establish that hardship caused by continued incarceration is unnecessary: Hassan, at para. 32. . R. v. S.H. [bail after successful appeal where new trial ordered: CCC 679(7.1)]
In R. v. S.H. (Ont CA, 2025) the Ontario Court of Appeal considered the bail situation after the successful appeal where to CA ordered a new trial [under CCC 679(7.1)] [this after the court initially addressed it under CCC 679(5), which was later held a nullity]:[1] The respondent was convicted of historical sexual offences involving two complainants who were children at the time of the offences. He was sentenced to a global sentence of seven years’ imprisonment. He filed an inmate notice of appeal against conviction and sentence and argued his appeal at the Kingston inmate appeal sittings on October 10, 2024. This court allowed his conviction appeal and ordered a new trial on all counts.
[2] On October 28, 2024, a single judge of this court made a release order under s. 679(5) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Release Order”). The Owen Sound Crown’s office is re-prosecuting the respondent on the offences for which he received a new trial.
[3] The Crown applies for an order revoking the Release Order and for a warrant of arrest and committal (the “Application”). As a result of the facial breach of the condition prohibiting him from being in the company of any persons under the age of 16 years, he was arrested for a s. 145(5) offence and is detained pending a show cause hearing.
[4] The respondent opposes the Application on the basis that the Release Order is a nullity. He points out that a release order made under s. 679(5) governs release pending appeal whereas he was released after the court allowed his appeal and ordered a new trial. Consequently, the respondent submits, the only valid form of release upon which he could have entered into bail was an order under s. 679(7.1), which governs those seeking release pending trial after a successful appeal. The respondent relies on the decision of Feldman J.A. in R. v. Ranger (2003), 2003 CanLII 15438 (ON CA), 180 O.A.C. 138 (C.A.), at para. 10 for his position. See also, R. v. D.C., 2019 ONCA 553, at para. 14 and R. v. Manasseri, 2017 ONCA 226, at paras. 40, 41 to the same effect. He further argues that since the Release Order was not lawful, it was void ab initio and, therefore, there is no lawful order upon which a revocation hearing can be based.
[5] I accept the respondent’s submission.
[6] Section 679(5) of the Criminal Code is clear that it only applies to an “appellant” who is released pending the hearing of their appeal. In this case, the respondent’s appeal is completed and a new trial was ordered. The only form of release applicable to the respondent in these circumstances would have to be issued under s. 679(7.1).
[7] Since the impugned Release Order’s issuance, the respondent appeared before the Owen Sound Superior Court of Justice where, presumably, the new trial will be held. According to para. 19 of Ranger, in the time period when the person first appears in the court where the new trial is to be held, up until the commencement of trial, the trial court and this court have concurrent jurisdiction over judicial interim release: see also, Manasseri, at paras. 40, 41; D.C., at para. 12.
[8] Despite having concurrent jurisdiction to hold a de novo bail hearing under s. 679(7.1), I decline to embark on that hearing. In my view, the Superior Court of Justice is better positioned to hear and decide such an application: D.C., at para. 17.
[9] Accordingly, the Application is dismissed and the matter of the respondent’s interim release is remitted to the Superior Court of Justice for a first instance Crown onus hearing for release under s. 679(7.1). . R. v. N.G.
In R. v. N.G. (Ont CA, 2025) the Ontario Court of Appeal considered a bail pending appeal application:(2) The Governing Principles for Bail Pending Appeal
[6] For bail pending a conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.
[7] The Crown does not argue that the applicant is a flight risk or that he is a danger to the public. The Crown opposes bail pending appeal in the public interest, on the basis that the grounds of appeal do not clearly surpass the “not frivolous” standard and the applicant poses public safety concerns, which must factor into the public interest analysis.
[8] The Supreme Court held in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, that the public interest element must be tested under the framework set out by this court in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32, (Ont. C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability.
[9] Under s. 679(3)(c) of the Criminal Code, there are two components to consider: public safety and public confidence in the administration of justice: Oland, at para. 23; Farinacci, at pp. 47-48. The Crown raises public safety concerns due to the nature of the offence, although “none reach the substantial risk mark.” The second component, public confidence, is primarily engaged in this application. Consideration of the public confidence component involves striking the balance between enforceability and reviewability: see R. v. R.B.-M., 2024 ONCA 787, at para. 11.
(a) Enforceability
[10] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, at para. 48.
[11] As noted in Oland, at para. 37, the seriousness of the crime figures in the assessment of the enforceability interest. This court has identified sexual offences relating to children as being on the higher end of the gravity spectrum in the context of bail pending appeal applications: R. v. J.B., 2023 ONCA 264, at para. 17, citing R. v. M.S., 2022 ONCA 348, at para. 15; R. v. C.M., 2023 ONCA 700, at para. 5; R. v. G.B., 2023 ONCA 621, at para. 10; R. v. J.C., 2023 ONCA 617, at para. 6; see also R.B.-M., at para. 16; R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 74. Undoubtedly, the enforceability interest weighs heavily in this case.
(b) Reviewability
[12] Reviewability acknowledges that “our justice system is not infallible and that persons who challenge the legality of their convictions should be entitled to a meaningful review process — one which did not require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful”: Oland, at para. 25, citing Farinacci, at pp. 47-49.
[13] The Supreme Court noted in Oland that “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. The grounds of appeal must “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland, at para. 44.
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(4) Application of the Public Confidence Principles
[28] As I noted earlier, the application for bail pending appeal turns on the analysis of the public confidence element, which involves striking the balance between reviewability and enforceability.
[29] Public confidence in the administration of justice requires that judicial decision-making be reviewed and corrected, especially when an individual’s liberty is at stake: Farinacci, at p. 48; R. v. Manasseri, 2013 ONCA 647, at para. 42.
[30] The court noted in Oland that “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. The grounds of appeal must “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland, at para. 44. These are the trial judge’s alleged misuse of prior consistent statement evidence and her discounting of cogent evidence in response to a breach of the rule in Browne v. Dunn. I found both grounds to be weak, but not frivolous. I am not persuaded that either of these grounds, alone or in concert, clearly surpass the minimal standard set by the “not frivolous” criterion.
[31] On the enforceability side, these are very serious offences that weigh heavily in the public interest analysis. Having been convicted, the applicant no longer benefits from the presumption of innocence: Oland, at para. 35. . R. v. Buonomo
In R. v. Buonomo (Ont CA, 2025) the Ontario Court of Appeal considers an application for bail pending appeal:(3) The Governing Principles
[7] For bail pending a conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.
[8] I set out the governing principles at length in R. v. J.B., 2023 ONCA 264. As the Supreme Court observed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the public interest element must be tested under the framework set out by this court in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32, (Ont. C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability.
[9] Under s. 679(3)(c), there are two components to consider: public safety and public confidence in the administration of justice: Oland, at para. 23; Farinacci, at pp. 47-48. Consideration of the public confidence component involves striking the balance between enforceability and reviewability. In striking this balance, “appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public”, being, “someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values”: Oland, at para. 47.
(a) Enforceability
[10] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, at p. 48. In this case, there are significant factors that weigh in favour of enforceability.
[11] As noted in Oland, at para. 37, the seriousness of the crime figures in the assessment of the enforceability interest. These are undoubtedly very serious offences. The jurisprudence recognizes that “[d]rug trafficking offences such as these have been identified as being on the higher end of the gravity spectrum in the context of bail pending appeal applications”: R. v. Janisse, 2022 ONCA 756, at para. 9, per MacPherson J.A. He added: “This stance on drug trafficking offences is unsurprising, given the fentanyl and methamphetamine epidemic this country is currently experiencing”. See also R. v. Isaac, 2022 ONCA 156, at para. 9. The Crown is right to assert that “Fentanyl continues to plague Canadian communities.”
(b) Reviewability
[12] Reviewability acknowledges that the “justice system is not infallible” in its results, such that “persons who challenge the legality of their convictions should be entitled to a meaningful review process” that does not “require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful”: Oland, at para. 25, citing Farinacci, at pp. 47-49. The court noted in Oland that “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. The grounds of appeal must “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland, at para. 44. The applicant no longer benefits from the presumption of innocence: Oland, at para. 35.
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(a) Public Safety
[16] Bail is denied under the public safety component only if the applicant poses “a ‘substantial likelihood’ of committing an offence or interfering with the administration of justice, where this ‘substantial likelihood’ endangers ‘the protection or safety of the public’ and when it is ‘necessary’ for public safety”: R. v. J.J., 2020 ONCA 280, at para. 12, citing R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 at p. 737.
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[19] Public confidence in the administration of justice requires that judicial decision-making be reviewed and corrected, especially when an individual’s liberty is at stake: Farinacci, at p. 48; R. v. Manasseri, 2013 ONCA 647, at para. 42. I now turn to assess the grounds of appeal and their weight in balancing the reviewability interest.
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(5) Disposition
[24] I must balance the grounds of appeal and their weight in the reviewability interest against the enforceability interest.
[25] A reasonable member of the public, one who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values, would recognize that neither the possibility of the applicant’s flight, nor his possible risk to public safety have any role to play in balancing the reviewability interest against the enforceability interest. I see this application for bail pending appeal as a close call. The grounds of appeal carry significant weight. They are not weak, as the Crown submits, but are moderate in strength and could realistically lead to an acquittal on appeal. This possibility engages the liberty interest, which guards against imprisonment for those whose conviction might be unlawful. Although the offences are very serious and fentanyl is a scourge, granting the applicant bail would be consistent with public confidence in the administration of justice, in ensuring that the law is respected.
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